United States District Court, M.D. Tennessee, Nashville Division
William J. Haynes, Senior United States District Judge
the Court is Defendant's motion for sanctions under 28
U.S.C. § 1927 (Docket Entry No. 60) to which Relator
filed a response (Docket Entry No. 63). Defendant seeks
sanctions against Relator's counsel for "the excess
attorneys' fees that Walgreens reasonably incurred
because of his unreasonable and vexatious multiplication of
the proceedings in this case." (Docket Entry No. 60 at
1). Specifically, Defendant seeks $19, 108.00, that
"encompasses the professional fees that Walgreens
incurred to respond to Relator's improper Objection to
the Magistrate's Report and Recommendation and
Relator's improper Motion to Alter or Amend Judgment ....
It also encompasses the professional fees that Walgreens
incurred to prepare" its motion for sanctions. (Docket
Entry No. 61 at 2 (internal citations omitted)).
U.S.C. § 1927 provides that an attorney that
"multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct."
Section 1927 sanctions do not require that an attorney act in
"bad faith" or with "conscious impropriety,
" but a court should inquire whether "an attorney
knows or reasonably should know that a claim pursued is
frivolous, or that his or her litigation tactics will
needlessly obstruct the litigation of nonfrivolous
claims." Hall v. Liberty Life Assurance Co. of
Boston, 595 F.3d270, 275-76 (6th Cir. 2010) (citing
Rentz v. Dynasty Apparel Indus., 556 F.3d 389, 396
(6th Cir. 2009)). The sanction requires "a showing of
something less than subjective bad faith, but something more
than negligence or incompetence." Id.
argues that Relator's counsel needlessly extended the
proceedings in this action by filing an objection to the
Magistrate Judge's Report and Recommendation that did not
raise any specific objections and "merely restated the
same legal arguments previously presented to the Court ...
."(Docket Entry No. 61 at 6). In his response,
Relator's counsel states: "If the Relator's
counsel had not filed an objection to the Magistrate's
Report and Recommendation, then his arguments would have been
waived. Relator's counsel was preserving the record for
appeal." (Docket Entry No. 63 at 2).The Court declines
to award sanctions under § 1927 for Relator's
counsel's conduct related to filing objections to the
Magistrate Judge's Report and Recommendation.
correctly notes that Relator's objections essentially
restated legal arguments previously presented to the Court in
Relator's response to the Defendant's motion to
dismiss. Yet, additional time that the Defendant spent
responding to Plaintiff's objections is mitigated by the
fact that Defendant already had an opportunity to respond to
those same arguments in its reply to Plaintiffs response to
its motion to dismiss. (See Docket Entry No. 38,
Reply in Support of Defendant Walgreen Co.' s Motion to
Dismiss Relator's Complaint). Further, because this
action was assigned to the Magistrate Judge, the filing of
objections-even if they were insufficiently specific-did not
"needlessly obstruct the litigation." See
Hall, 595 F.3d at 275-76. In these circumstances,
the filing of insufficiently specific objections at most
constituted "negligence or incompetence" for which
sanctions are not appropriate under § 1927. Id.
Relator's motion to alter or amend, Defendant argues that
Relator's counsel '"knowingly disregarded] the
risk that his actions [would] needlessly multiply
proceedings' by continuing to restate the same legal
argument presented to the Court on multiple occasions."
(Docket Entry No. 61 at 9 (quoting Red Carpet Studios
Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642,
646 (6th Cir. 2006)). In his response, Relator's counsel
contends that the motion to alter or amend was filed "in
the ordinary course of litigation" and "to preserve
the record for appeal." (Docket Entry No. 63 at 5).
relief under Rule 59(e), there must be "(1) a clear
error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to
prevent manifest injustice." Intera Corp. v.
Henderson. 428 F.3d 605, 620 (6th Cir. 2005) (citing
GenCorp. Inc. v. Am. Int'l Underwriters. 178
F.3d 804, 834 (6th Cir. 1999)). Here, Relator's motion to
alter or amend did not even specify which of these four bases
for relief was applicable. The "ordinary course of
litigation" does not include improperly requesting
reconsideration. See Sault Ste. Marie Tribe of Chippewa
Indians v. Engler. 146 F.3d 367, 374 (6th Cir. 1998)
("A motion under Rule 59(e) is not an opportunity to
re-argue a case.") (citation omitted).
Court previously noted in its Order denying Relator's
motion to alter or amend judgment (Docket Entry No. 62),
Relator's Rule 59 motion is a nearly verbatim reassertion
of his objections to the Magistrate Judge's Report and
Recommendation, with the addition of quoting paragraphs two
and three of his amended complaint. (Compare Docket
Entry No. 53, Plaintiffs Objection to Report and
Recommendation, with Docket Entry No. 58, Plaintiffs
Motion to Alter or Amend). Thus, Relator's motion to
alter or amend was not necessary "to preserve the record
for appeal" because the arguments therein were already
well-documented in previous filings. Based on the Court's
earlier rulings, Relator's counsel "reasonably
should have known" that filing the motion to alter or
amend would "needlessly obstruct the litigation"
and thus § 1927 sanctions are proper for this conduct.
See Hall,, 595 F.3d at 275-76. The Court agrees with
Defendant and concludes that Relator's counsel should
"satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred" by Defendant in
responding to Relator's motion to alter or amend.
See 28 U.S.C. § 1927.
party awarded sanctions under § 1927 is only due the
"excess costs, expenses and attorneys' fees"
that were "'reasonably incurred' as a result of
the wrongful multiplication of the proceedings."
Johnson v. Zimmer Holdings. Inc.. 73 F.Supp.3d 814,
819 (E.D. Ky. Dec. 16, 2014) (citing In re Ruben.
825 F.2d 977, 988 (6th Cir.1987)). Defendant requests $19,
108.00 for professional fees incurred responding to
Relator's objection, responding to Relator's motion
to alter or amend judgment, and preparing its motion for
sanctions. (Docket Entry No. 61 at 2). Defendant's
counsel submitted an itemized statement of fees from March
16, 2015, the date of Relator's objection. (Docket Entry
counsel does not challenge the reasonableness of the hours
expended or the rates charged, but notes that "[a]t
least eighteen (18) hours included in [Defendant's]
accounting have to do with drafting, editing and reviewing
the Defendant's Motion for Sanctions. The other hours
listed in the accounting have to do with the ordinary course
of litigating this action." (Docket Entry No. 63 at 4).
The Court concludes that based upon Defendant's
submissions the hours expended by Defendant's attorneys
and the attorneys' hourly rates are reasonable.
review of Defendant's statement of fees, Defendant spent
19.25 hours and incurred total expenses of $7, 281.00 from
March 16, 2016 through April 5, 2016 responding to
Relator's objection. Id. at 1-2. Because the
Court concludes that § 1927 sanctions are inappropriate
for Relator's counsel's conduct related to filing the
objection, Defendant is not entitled to these expenses.
Defendant also spent 7.5 hours and incurred total expenses of
$2, 836.00 from May 3, 2016 through May 17, 2016 responding
to Relator's motion to alter or amend
judgment. Id. at 2-4. Because Relator's
counsel "reasonably should have known" that filing
the motion to alter or amend would "needlessly obstruct
the litigation, " the Court awards Defendant $2, 836.00.
Finally, Defendant spent 30 hours and incurred total expenses
of $8, 991.00 from May 12, 2016 through May 26, 2016
preparing its motion for sanctions. Id. at 3-5.
motion for sanctions, Defendant argues that Relator's
counsel unreasonably and vexatiously multiplied these
proceedings in three separate ways, with its analysis divided
into three separate sections. (Docket Entry No. 61 at 4-9).
Because the Court concludes that § 1927 sanctions are
proper based on Relator's counsel's conduct described
in only one of these sections, the Court also awards
Defendant one-third of its expenses incurred in preparing its
motion for sanctions, or $2, 997.00. See Bailey v. Papa
John's USA. Inc.. 236 F.App'x 200, 206 (6th Cir.
2007) (upholding a district court's award of sanctions by
"looking to the amount of argument devoted by" the
party receiving fees).
for these reasons, the Court concludes that Defendant's
motion for sanctions under 28 U.S.C. § 1927 (Docket
Entry No. 60) should be GRANTED in part, and Defendant should
recover from Relator's counsel a total award of excess